Does it count as a Delaware FOIA violation if the request goes to a former coordinator's spam folder?

Official title

22-IB32 08/31/2022 FOIA Opinion Letter to Barbara L. Bullock re: FOIA Complaint Concerning the City of Harrington

Plain-English summary

The petitioner sent the City of Harrington a FOIA request on July 6, 2022 for records of expenses related to the City Manager's attendance at a New Jersey police expo. She heard nothing for several weeks and filed a petition alleging the City had blown the 15-business-day deadline. The City responded with an affidavit explaining the request had been sent to a former FOIA coordinator's email address. The current FOIA coordinator regularly monitored that account, including the spam folder, and discovered the request on July 27, 2022. That same morning the new coordinator acknowledged receipt and later in the day responded substantively, telling the petitioner that the City had no responsive records about expenses for that trip.

The AG found no violation. The City had produced a copy of the July 27, 2022 email showing it responded within the 15-business-day window. The AG's finding rested on timeliness; the City's response itself was that it had no documentation or expenses regarding the City Manager.

What this means for you

If you are a Delaware municipality going through a FOIA coordinator transition

The opinion holds that the City did not violate FOIA because the current coordinator regularly checked the former coordinator's email, including the spam folder, found the request there, and responded within the 15-business-day deadline. The City carried its burden with a sworn affidavit from the current coordinator establishing that timeline and that monitoring practice.

If you are a Delaware citizen wondering if your request got lost

The opinion holds that an agency that locates a misdirected request and responds within 15 business days of receipt has met the deadline, even when the request had gone to a former employee's inbox and into spam. The AG did not treat the routing problem as excusing or extending the deadline; here the City's response simply fell within the window.

If you are an attorney advising a Delaware public body

The opinion holds that the 15-business-day clock runs from receipt of the request, and that the public body carries the burden of proving a timely response. The City met that burden by producing the July 27, 2022 email showing it answered within the window, backed by the coordinator's affidavit.

Common questions

What's the 15-business-day rule again?

Under 29 Del. C. § 10003(h)(1), a public body must respond within 15 business days of receipt by either providing access, denying access, or invoking the statutory extension (voluminous records, legal advice, archived records) with a good-faith time estimate.

Did the City do anything wrong here?

The petitioner alleged a violation; the AG found none. The AG held that the City's discovery of the request on July 27 and its response that same day satisfied the 15-business-day deadline.

What did the AG's finding rest on?

The timeliness finding rested on the City's evidence, in a sworn affidavit, that the new coordinator had been actively monitoring the former coordinator's email, including spam, and produced a response within the deadline once the request was found. The opinion does not address what the result would have been on different facts.

Why did the City respond saying it had no records?

That was the City's response to the request: it informed the petitioner that it did not have any documentation or expenses regarding the City Manager. The AG's determination, however, turned on the timeliness of the response, not on whether records existed.

Background and statutory framework

The petitioner submitted a July 6, 2022 FOIA request for the City Manager's New Jersey police expo expenses. The request reached a former FOIA coordinator's email and landed in the spam folder. The current FOIA coordinator regularly monitored the former coordinator's account, including spam. On July 27, 2022, within 15 business days of the request, the current coordinator found the request, acknowledged it that morning, and replied later the same day stating the City had no responsive records.

Under § 10005(c), the public body has the burden of proving compliance. Section 10003(h)(1) sets the 15-business-day deadline for responding. The City's affidavit from the current FOIA coordinator established the timeline and the practice of monitoring the legacy inbox.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10003(h)(1) (15-business-day response deadline)
• 29 Del. C. § 10005 / § 10005(c) (petition procedure and burden of proof)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/08/31/22-ib32-08-31-2022-foia-opinion-letter-to-barbara-l-bullock-re-foia-complaint-concerning-the-city-of-harrington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/09/Attorney-General-Opinion-No.-22-IB32.pdf

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

KATHLEEN JENNINGS
ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB32
August 31, 2022

VIA EMAIL
Barbara L. Bullock
[email protected]

RE:

FOIA Petition Regarding the City of Harrington

Dear Ms. Bullock:
We write in response to your correspondence alleging that the City of Harrington violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") with respect to your request for records. We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we determine that the City did not violate FOIA as alleged in the Petition.

On July 6, 2022, you sent a FOIA request to the City seeking the expenses related to the City Manager's attendance of a New Jersey police expo. On July 27, 2022, you received an email from the City acknowledging receipt of your request. This Petition followed, in which you allege that the City violated FOIA by failing to respond to your request within fifteen business days.

On August 10, 2022, the City, through its legal counsel, answered the Petition ("Response") and included the current FOIA coordinator's affidavit. The City states that your FOIA request was sent to the former FOIA coordinator, who has left City employment. The current FOIA coordinator checks the emails of the former FOIA coordinator regularly to catch any misdirected responses, including the spam folder. In doing this check, the current FOIA coordinator discovered a copy of your request in the spam folder on July 27, 2022. After acknowledging your request that morning, the current FOIA coordinator then responded later in the day, informing you that the City did not have any documentation or expenses regarding the City Manager.

A public body has the burden of proof to demonstrate compliance with FOIA.[1] FOIA mandates that a public body provide a response to a FOIA request within fifteen business days of receipt, unless it provides notice in compliance with the statute that additional time is required to complete a response.[2] The City, in this instance, provided a copy of the July 27, 2022 email demonstrating that it provided a timely response to your request within fifteen business days. Accordingly, we find that a violation of FOIA did not occur as alleged.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Aaron R. Goldstein

Aaron R. Goldstein
State Solicitor

cc:

Dianna E. Stuart, Attorney for the City of Harrington

[1] 29 Del. C. § 10005(c).
[2] 29 Del. C. § 10003(h)(1).